Plan for your future: Protect your well-being and assets

San Diegans work hard in their jobs not only to become successful in the present, but also to make sure they will be comfortable in the future. While living in such comfort, nobody wants to think of a future that involves incapacitation due to dementia, stroke, Alzheimer’s, cancer, etc. or possibly death, but it is necessary in order to protect your well-being and your assets from probate.

“It’s important to consider both situations,” advised Caroline Morrison, Partner at Palecek, Morrison & Associates, LLP. “Upon your incapacity, you need to have a plan in place. You need to have someone appointed to make decisions for you. If you don’t, the issue will have to go into court and a plan will be put into place for you.”

While a will is an important document to have, a living trust is a more effective and proven alternative that will help one avoid probate and allow one to maintain control over his/her assets while living – even if incapacitated – and after death.

If no living trust exists, the court has to be involved in the decision making process. Once the court becomes involved, it usually stays involved until recovery or death. This means the court, not one’s family, controls how assets are used for care. This process is expensive and time-consuming.

With a living trust, assets are transferred from your name to the name of your trust, the trust terms are decided by the owner (“settlor”) of the living trust. While the "settlor" remains alive and in good health with full capacity they generally remain Trustee of their trust. Many people choose to appoint their spouse or child as a successor trustee so that they can make important medical, financial and other decisions when the owner (“settlor”) can no longer do this for themselves.

“It’s so important that there is a plan in place while the individual can still make good decisions before it is too late to put the ideal plan together,” said Genna Palecek, Partner, PMA LAW.

Nobody wants their family members to be burdened after their death, but most especially they don’t want their family to have to make tough decisions while they are still alive.

“Who will make these decisions for them? The limited resources that someone does have they want to protect so they can continue living where they want to live and not be robbed of their assets and be uprooted from their home. The same amount of thought needs to be given to their medical care decisions,” said Morrison. “If they can’t make their own decisions regarding their health care, someone needs to be appointed to do that for them.”

With a living trust in place, upon incapacitation, your successor trustee will be able to look after your care and manage your financial affairs for as long as you need. If you recover, you can resume control over your living trust. Upon death, your successor trustee pays your debts and distributes your assets according to the instructions in your living trust. This process is done quickly and privately without court interference.

“If a relative lives clear across the country,” said Morrison, “then someone in closer proximity should be appointed, maybe a professional fiduciary.”

To get answers to any questions you might have about living trusts, wills and probate visit PMA LAW at the U-T Successful Living Expo on Saturday, Feb. 1 at the Town & Country Resort in Mission Valley. Morrison and Palecek will be available at this free event to help attendees understand the intricacies of trust planning.